Medical Procedures Cases

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At law, parents automatically have responsibility for making various decisions affecting their children’s long term care, welfare and development. This includes various issues such as their religious and cultural upbringing, type of education, and consenting to most medical procedures.

However, there are some medical procedures which are beyond parents’ authority. The carrying out of these procedures is contrary to a child’s rights, and may include such things as sterilisation.

In cases where a medical procedure for a child is proposed, and it is beyond the parents’ authority, a Court Order from the Family Court is required to permit the procedure.

There is a history of cases in the Family Court where permission has been sought for sterilisation of female children with an intellectual disability. Reasons for the procedure have included the inability of the child to cope with the menstrual cycle.

As with any children’s case, the Court has to consider as the paramount consideration the best interests of the child. In the process of doing so, the Court must examine if other better options are available for the child than a drastic medical procedure.

Re Alex: Hormonal Treatment For Gender Indentity Dysphoria is a recent decision of the Chief Justice of the Family Court, which has attracted media attention and some controversy.

The case involved a 13 year old child Alex (not his real name) born with female anatomy. For all his life, Alex identified as being male and throughout his childhood went to lengths to conceal his female gender attributes. At the onset of puberty and the menstrual cycle, Alex suffered acute distress to the point of contemplating suicide.

With the support of state welfare authorities, his guardian and his teachers, and with expert evidence to support the proposal, an application was made to the Family Court for Alex to undergo hormonal therapy which would stop the menstrual cycle and cause Alex to develop male physical attributes. There was evidence that the treatment, proposed for a three year period until Alex turned 16, was reversible.

In a very lengthy and carefully considered judgment, Alex was permitted to undergo hormonal therapy as proposed. At age 16, an assessment could be done to determine whether Alex should proceed to further therapy. Once Alex turned 18, he could decide with appropriate counseling and support whether further, more radical and invasive treatment was needed.

Re Alex is considered a landmark decision of the Family Court. It is also an example of how issues of social interest and importance can make their way into Family Law cases, the need for the Family Court to deal with them, and of its progressive approach.

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